Paragraph numbers below are the court’s original numbering, recovered from the source text.
9. We respectfully reiterate what was earlier said by the Court in People's Union for Civil Liberties.
10. In 1997, in the Peoples' Union for Civil Liberties this Court, dealing with the case of killing of two persons in Manipur H had cautioned the State against "Administrative liquidation". EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION (EEVFAM) v. UNION OF INDIA But, after 15 years in this case, we are faced with similar A allegations on a much larger scale.
11. For this Court, the life of a policeman or a member of the se~urity forces is no less precious and valuable than any other person. The lives lost in the fight against terrorism and insurgency are indeed the most grievous loss. But to the State it is not open to cite the numbers of policemen and security forces killed to justify custodial death, fake encounter or what this Court had called "Administrative liquidation". It is simply not permitted by the Constitution. And in a situation where the Court finds a person's rights, specially the right to life under assault C by the State or the agencies of the State, it must step-in and stand with the individual and prohibit the State or its agencies from violating the rights guaranteed under the Constitution. That is the role of this Court and it would perform it under all circumstances. We, thus, find that the third plea raised in the D counter affidavit is equally without substance.
12. Lastly, the counter affidavit, and the Supplementary Counter Affidavit filed by the State give the State's version of the 10 cases highlighted in the Compilation 1, filed by the petitioners. But on that we would not like to make any comment at this stage.
13. The Union of India has also filed a separate counter affidavit. It is a more responsible affidavit in that it does not evade the issues nor does it try to dissuade the Court from examining the cases of alleged extra-judicial executions brought to its notice by the writ petitioners. In the counter affidavit filed by the Union, first a reference is made to different legal provisions (Section 146 and Sections 129 to ·j 32 of the Criminal Procedure Code, Sections 99 to 106 in Chapter IV G of the Indian Penal Code and Section 4 of the Armed Forces {Special Powers) Act, 1959) and it is contended that subject to the conditions stipulated in those provisions, killing of a person by a police officer or a member of the armed forces [2013) 1 S.C.R. may not amount to an offence and may be justified in law. It is stated in the counter affidavit that all the cases listed and/or highlighted in the writ petition and described as extra-judicial executions are cases of persons who died during counter- insurgency operations or in performance of other lawful duties by the police and the personnel of the armed forces. It is emphasized that in most of the cases the so-called victims might have been killed in the lawful exercise of the powers and/or in discharge of official duties by the police and the armed forces personnel. It is further said that "public order" and, by c implication, the maintenance of "law and order" are primarily State subjects and the role of the Central Government in deploying the armed forces personnel in the State is only supportive in aid of the law and order machinery of the State. The State of Manipur has the primary duty to deal with the issue of investigation in relevant cases, except where provided to the contrary in any other law for the time being in force. It is stated that the "very gloomy picture" of the State of Manipur sought to be presented by the writ petitioners is incorrect and misleading. It is asserted that Manipur is fully and completely integrated with the rest of the country and it is pointed out that in the 1990 elections the voting turnout for the 60 assembly seats in the State was 89.95%. Similarly, during the recent 2012 assembly elections, the voting turnout was 83.24%. It is added that the voting percentage in Manipur is amongst the highest in the country as a whole and it clearly shows that the people of Manipur have taken active participation in the elections showing their full faith in the Constitution and the constitutional process.
14. Coming to the issue of insurgency, it is stated in the G counter affidavit as under: "It is only a handful of disgruntled elements who have formed associations/ groups that indulge in militant and unlawful activities in order to retain their influence and hegemony in the society. These groups also challenge the EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION (EEVFAM) v. UNION OF INDIA sovereignty and integrity of the country by following aims and objectives which are secessionist in nature. It is emphasized that only around 1500 militants are holding a population of 23 lakhs in Manipur to ransom and keeping the people in constant fear. The root cause of militancy in Manipur is the constant endeavour of these insurgent groups so that they can continue to extort money and the leaders of such groups can continue to lead luxurious life in foreign countries. The tribal divide and factions in the society and the unemployed youth are being exploited by these militant outfits to fuel tension in the society.~ c
15. It is further stated in paragraph 13 of the counter affidavit as under: "It may also be submitted that the ethnic rivalries amongst the different tribal groups viz. Meities, Kukis and Nagas are deep-rooted and the militant groups fervently advance their ideologies by taking advantage of the porous international border with Myanmar which is 256 km long, heavily forested and contains some of the most difficult terrain. The border area is inhabited by the same tribes on either side. These tribes have family relations and for social interactions a free movement regime for the locals to move up to 16 kms on both sides is permitted. Taking advantage of this situation the militant outfits utilize the other side of the border (which is beyond the jurisdiction of the Indian Armed Forces) for conveniently conducting their operations of extortions/ kidnapping/ killing/ looting and ambushing the security forces."
16. The counter affidavit goes on to explain that the operations of not only the State Police but the different security forces under the control of the Central Government are being strictly monitored and kept within the parameters set out by the different laws under which those forces operate. It is stated that different statutory agencies acting as watchdog ensure that the [2013) 1 S.C.R. A armed forces do not overstep the Constitutional or the legal limits in carrying out the anti-insurgency operations.
17. Ms. Guruswamy, the learned amicus has, on the other hand, presented before us tables and charts showing the 8 inconsistencies in the materials produced by the State of Manipur itself concerning the 10 cases highlighted in "Compilation 1" filed by the petitioners. She also submitted that though enquiries were purported to be held by an Executive Magistrate in the 10 cases described in "Compilation 1", in none of those cases the kin of the victims came before the C Magistrate to give their statements even though they were approaching the court, complaining that the victims were killed in fake encounters. She further pointed out that in some of the cases even the police/security forces personnel who were engaged in the killings did not turn up, despite summons issued D by the Magistrate, to give their version of the occurrence and the Magistrate closed the enquiry, recording that there was nothing to indicate that the victims were killed unlawfully. In some ca~es the Magistrate, even while recording the finding that the case did not appear to be one of fake encounter made the E concluding observation that it would be helpful to sensitize the police/armed forces in human rights. She submitted that the so- call ed enquiries held by the Magistrate were wholly unsatisfactory and no reliance could be placed on the findings recorded in those enquiries.
18. Apart from the criticisms made by the amicus against the Magisterial enquiries held in the 10 cases of "Compilation 1" it is important to note that a number of cases cited by the petitioners had gone to the Gauhati High Court and on the G direction of the High Court, inquires, of a judicial nature, were made into the killings of (1) Azad Khan, age 12 years (according to the State, 15 years) (from "Compilation 1 "), (2)Nongmaithem Michael Singh, age 32 years, (3) Ningombam Gopal Singh, age 39 years, (4) (i) Salam Gurung alias Jingo, H age 24 years, (ii) Soubam Baocha alias Shachinta, age 24 EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION (EEVFAM) v. UNION OF INDIA years (5) (i) Mutum Herojit Singh, age 28 years (ii) Mutum Rajen, age 22 years (6) Ngangbam Naoba alias Phulchand Singh, age 27 years (7) Sapam Gitachandra Singh, age 22 years (8) (i) Kabrambam Premjit Singh, (ii) Elangbam Kanto Singh (9) Longjam Uttamkumar Singh, age 34 years (10) Loitongbam Satish @ Tomba Singh, age 34 years (11) Thockhom lnao @ Herojit Singh, age 31 years, (12) Khumallambam Debeshower Singh (13) (i) Km. Yumnam Robita Devi (ii) Angom Romajitn Singh (14) Thoudem Shantikumar Singh (all from "Compilation 2").
19. In all those cases the judicial inquiry found that the victims were not members of any insurgent or unlawful groups · and they were killed by the police or security forces in cold blood and stage-managed encounters.
20. It is stated on behalf of the petitioners that though it was established in the judicial enquiry that those persons were victims of extra-judicial executions, the High Court simply directed for payment of monetary compensation to the kins of the victims. Learned Counsel for the petitioners submitted that payment of rupees two to four lakhs for killing a person from funds that are not subjected to any audit, instead of any accountability for cold blooded murder, perfectly suits the security forces and they only get encouraged to carry out further killings with impunity.
21. On a careful consideration of the averments made in the writ petition and the counter affidavits filed by the respondents and on hearing Ms Guruswamy, the amicus, Mr. Gonsalves the learned counsel appearing for the writ rt!:!titioners, Mr. Kuhad, the Additional Solicitor General appearing for the Union of India, Mr. Ranjit Kumar, senior advocate appearing for the State of Manipur and Ms. Shobha, advocate appearing for the NHRC, we find it impossible to overlook the matter without further investigation. We are clearly of the view that this matter requires further careful and deeper consideration. (2013] 1 S.C.R.
22. The writ petitioners make the prayer to constitute a Special Investigation Team comprising police officers from outside Manipur to investigate the cases of unlawful killings listed in the writ petition and to prosecute the alleged offenders but at this stage we are not inclined to appoint any Special B investigation Team or to direct any investigation under the Code of Criminal Procedure. Instead, we would first like to be fully satisfied about the truth of the allegations concerning the cases cited by the writ petitioners. To that end, we propose to appoint a high powered commission that would tell us the correct facts c in regard to the killings of victims in the cases cited by the petitioners. We, accordingly, constitute a three-member commission as under: 1. Mr. Justice N. Santosh Hegde, a former Judge of the Supreme Court of India, as Chairperson 2. Mr. J. M. Lyngdoh, former Chief Election Commissioner, as Member 3. Mr. Ajay Kumar Singh, former DGP and IGP, Karnataka.
23. We request the Commission to make a thorough enquiry in the first six cases as detailed in "Compilation 1", filed by the petitioners and record a finding regarding the past antecedents of the victims and the circumstances in which they F were killed. The State Government and all other concerned agencies are directed to hand over to the Commission, without any delay, all records, materials and evidences relating to the cases, as directed above, for holding the enquiry. It will be open to the Commission to take statements of witnesses in G connection with the enquiry conducted by it and it will, of course, be free to devise its own procedure for holding the enquiry. In light of the enquiries made by it, the Commission will also address the larger question of the role of the State Police and the security forces in Manipur. The Commission will also make H a report regarding the functioning of the State Police and EXTRA JUDICIAL EXECUTION VICTIM FAMILIES ASSOCIATION (EEVFAM) v. UNION OF INDIA security forces in the State of Manipur and in case it finds that the actions of the police and/or the security forces transgress the legal bounds the Commission shall make its recommendations for keeping the police and the security forces within the legal bounds without compromising the fight against insurgency.
24. The Commission is requested to give its report within twelve weeks from today.
25. The Central Government and the Government of the State of Manipur are directed to extend full facilities, including manpower support and secretarial assistance as may be desired by the Commission to effectively and expeditiously carry out the task assigned to it by the Court.
26. The Registry is directed to furnish a copy of this order and complete sets of briefs in both the writ petitions to each of the members of the Commission forthwith.
27. Put up on receipt of the report by the Commission. B.B.B. Matter pending.